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Joseph Holcombe MULLIGAN

 
 
 
 
 

 

 

 

   
 
 
Classification: Murderer
Characteristics: To collect on a life insurance policy - To eliminate a witness
Number of victims: 2
Date of murder: April 13, 1974
Date of birth: 1952
Victims profile: Capt. Patrick A. Doe of the Army (the estranged husband of Mulligan's sister) / Marion Jones Miller (the captain's girlfriend)
Method of murder: Shooting (.38 special automatic in a .45 frame)
Location: Muscogee County, Georgia, USA
Status: Executed by electrocution in Georgia on May 15, 1987
 
 
 
 
 
 

Joseph Mulligan - Georgia - May 15, 1987

ProDeathPenalty.com

Joseph Mulligan became friends with Timothy A. Helms while Helms was stationed with the United States Marine Corps in Beaufort, South Carolina.

On April 12, 1974, Mulligan talked Helms into driving him to Columbus, Georgia, by offering Helms a fee of $1000. During the drive, Mulligan told Helms that he was going to Columbus, to "ice somebody." In accordance with Mulligan's suggestion, the two spent the night of April 12-13 at a hotel in Columbus registered under false names.

The next day, Mulligan and Helms visited with Patrick A. Doe, an army captain at Fort Benning and Mulligan's brother-in-law. In the afternoon, they joined Capt. Doe in washing his car. During this activity, Mulligan and Capt. Doe argued. 

That evening, with Mulligan and Helms sitting in the back seat (Mulligan seated directly behind the driver's seat), Capt. Doe drove to the house of Marian Jones Miller, the captain's girlfriend, to pick her up for a party. When Capt. Doe left the car to get Ms. Miller, Mulligan announced to Helms that he would "do it in the next two blocks." 

Following Captain Doe's return to the driver's seat and shortly after the car had begun to move again, Mulligan held a .38 special automatic in a .45 frame, which Mulligan had earlier borrowed from the captain, to the captain's head. Mulligan fired once.

He then ordered Helms to grab the now-abandoned steering wheel, but Helms was unable to do so before the car had struck both a stop sign and a mail box. When Ms. Miller, who was seated in the front seat next to Captain Doe, cried out for help, Mulligan placed the gun across Helms' back and shot Ms. Miller as he told her to be silent.

After Helms finally  brought the car to a stop, Mulligan and Helms towelled it off for fingerprints and then ran. As they fled the scene of the crime, Helms threw away his bloody shirt and the wallet which he had removed from the body of Capt. Doe. Mulligan threw Captain Doe's gun into some bushes and his own clothes over a bridge. 

The autopsy performed on Capt. Doe showed that the bullet had entered the left eye, traveled through the brain, and exited the right temple.

The autopsy of Ms. Miller revealed that she had been shot four times: in the left forearm, the left shoulder, the right upper arm, and the midportion of the back of the skull, with the exit wound of the last listed shot being the right eye.

The cause of death for both victims was laceration and hemorrhage of the brain and cerebral trauma.

Several .38 shell casings were found in the captain's car along with a bullet. The State Crime Laboratory test indicated that the shell casings and the bullet found in Capt. Doe's car had been fired by Capt. Doe's .38 pistol. Finally, a latent fingerprint which had been lifted from the left door window of Captain Doe's car was found to match a rolled print of Mulligan's left middle finger.

The evidence also revealed that Captain Doe had filed a divorce action against Mulligan's sister and that Captain Doe had told Mulligan on the day of the murders, that his divorce from Mulligan's sister would be final soon. 

 
 

Georgia man executed after appeal to High Court

The New York Times

May 16, 1987

Joseph Mulligan, who was convicted of killing a witness to a murder he committed for the insurance money, died this evening in Georgia's electric chair.

Mr. Mulligan died at 7:25 P.M., said John Siler, a spokesman for the Department of Corrections.

The United States Supreme Court had earlier voted 7 to 2 to reject an emergency request to postpone Mr. Mulligan's execution and a formal appeal challenging his conviction and death sentence. Only Justices William J. Brennan and Thurgood Marshall, who oppose capital punishment under all circumstances, voted to spare the prisoner's life.

Before he died, Mr. Mulligan visited with his father, his brother, a cousin and his lawyers at the state prison for more than five hours. Other Conviction Overturned

Mr. Mulligan, 35 years old, was sentenced to die for killing Marion Jones Miller in Columbus on Easter morning in 1974. A death sentence for the slaying the same day of Mr. Mulligan's brother-in-law, Capt. Patrick Doe of the Army, was overturned by state courts.

Prosecutors said Mr. Mulligan killed Captain Doe, the estranged husband of Mr. Mulligan's sister, to collect on a life insurance policy, and he killed Mrs. Miller to eliminate a witness.

Mr. Mulligan's appeals were based on claims of various errors by the trial judge and prosecutor, including failure to make it clear that the jury had sole responsibility for imposing the death sentence.

Much of the prosecution's case rested on the testimony of Timothy Helms, who was granted immunity in return for testifying that Mr. Mulligan shot Captain Doe once in the head and Mrs. Miller four times.

Mr. Mulligan maintained that he was not guilty. He said he was on a bus traveling from Atlanta to Savannah when the killings occurred.

 
 

MULLIGAN v. THE STATE.*

245 Ga. 266,
264 S.E.2.d 204

Supreme Court of Georgia

Docket number: 35314

September 18, 1979

JORDAN, Justice.
Murder, etc. Muscogee Superior Court. Before Judge Smith.

Appellant-defendant, Joseph Holcombe Mulligan, was co-indicted with Timothy Andrew Helms in Muscogee County in August of 1974 for the murders of Patrick A. Doe and Marian Jones Miller, and for theft by taking. Following a jury trial, the appellant was found guilty on all counts and sentenced to death for each murder and to thirty days for theft by taking. The case is presently before this court on appeal and mandatory review of the death sentence.

I. The Evidence.

A summary of the evidence is as follows:

The appellant became friends with Timothy A. Helms, his co-indictee, while the latter was stationed with the United States Marine Corps in Beaufort, South Carolina. On April 12, 1974, the appellant talked Helms into driving him to Columbus, Georgia, by offering Helms a fee of $1,000. During the drive, the appellant told Helms that he was going to Columbus, to "ice somebody."

In accordance with the appellant's suggestion, the two spent the night of April 12-13 at a hotel in Columbus registered under false names. The next day, the appellant and Helms visited with Patrick A. Doe, an army captain at Fort Benning and the appellant's brother-in-law. In the afternoon, they joined Captain Doe in washing the latter's car. During this activity, the appellant and Captain Doe argued.

That evening, with the appellant and Helms sitting in the back seat (the appellant seated directly behind the driver's seat), Captain Doe drove to the house of Marian Jones Miller, the captain's girlfriend, to pick her up for a party. When Captain Doe left the car to get Ms. Miller, the appellant announced to Helms that he would "do it in the next two blocks."

Following Captain Doe's return to the driver's seat and shortly after the car had begun to move again, the appellant held a .38 special automatic in a .45 frame, which the appellant had earlier borrowed from the captain, to the captain's head. The appellant fired once. He then ordered Helms to grab the now-abandoned steering wheel, but Helms was unable to do so before the car had struck both a stop sign and a mail box. When Ms. Miller, who was seated in the front seat next to Captain Doe, cried out for help, the appellant placed the gun across Helms' back and shot Ms. Miller as he told her to be silent.

After Helms finally brought the car to a stop, the appellant and Helms towelled it off for fingerprints and then ran. As they fled the scene of the crime, Helms threw away his bloody shirt and Captain Doe's wallet which he had removed from the body of Captain Doe at the appellant's instruction. Similarly, the appellant threw Captain Doe's gun into some bushes and his own clothes over a bridge.

The autopsy performed on Captain Doe showed that the bullet had entered the left eye, traveled through the brain, and exited the right temple. The autopsy of Ms. Miller revealed that she had been shot four times: in the left forearm, the left shoulder, the right upper arm, and the midportion of the back of the skull, with the exit wound of the last listed shot being the right eye. The cause of death for both victims was laceration and hemorrhage of the brain and cerebral trauma.

Several .38 shell casings were found in the captain's car along with a bullet. The State Crime Laboratory test indicated that the shell casings and the bullet found in Captain Doe's car had been fired by Captain Doe's .38 pistol. Finally, a latent fingerprint which had been lifted from the left door window of Captain Doe's car was found to match a rolled print of the appellant's left middle finger.

The evidence also revealed that Captain Doe had filed a divorce action against the appellant's sister and that Captain Doe had told the appellant on the day of the captain's death, that his divorce from the appellant's sister would be final soon.

This court holds that the evidence in support of the verdicts is legally sufficient since the evidence more than supports a reasonable jury's finding that the appellant was guilty beyond a reasonable doubt of each and every crime charged.

II. Enumerations of Error.

1. The appellant first enumerates as error the trial court's failure to charge the jury that they could consider mitigating circumstances and recommend a life sentence even though they found the existence of a statutory aggravating circumstance beyond a reasonable doubt.

In Fleming v. State, 240 Ga. 142 (240 SE2d 37) (1977), this court noted that the trial court has a duty to make clear to the jury that "our system for deciding whether a death sentence is to be given requires the jury to consider two issues in the sentencing phase. First, the jury must consider if the state has proven the existence of at least one statutory aggravating circumstance (Code Ann. 27-2534.1 (b)(1-10)), beyond a reasonable doubt. Second, if one of these circumstances is found, the jury must then consider the mitigating and aggravating circumstances relevant to the defendant and determine whether the death penalty is appropriate in this case." Id., at 146-147.

We have carefully reviewed the trial judge's charge [see T. 269-272] to the jury during the sentencing phase of the appellant's trial and conclude that the trial judge fully met his duty of making clear to the jury that they could sentence the appellant, not to death, but to life imprisonment, even though they found the existence of a statutory aggravating circumstance beyond a reasonable doubt. The appellant's first enumeration of error is without merit.

2. The appellant also enumerates as error the trial court's failure to hold the Georgia Death Penalty Procedure (Code Ann. 27-2534.1) unconstitutional as a cruel and unusual mechanism for the award of the death penalty in violation of the Eighth Amendment to the United States Constitution. Specifically, the appellant argues that an arbitrary and capricious system for awarding the death penalty can be avoided only when the trial judge, and not the jury, decides whether the sentence shall be death or life in prison.

The United States Supreme Court, in Gregg v. Georgia, 428 U. S. 153 (1976), held that the Georgia Death Penalty procedure effectively obviated that court's concern that the death penalty not be imposed in an arbitrary and capricious manner, and specifically noted that "while some jury discretion still exists, 'the discretion to be exercised is controlled by clear and objective standards so as to produce non-discriminatory application.' " Id., at 197, 198.

Further, that court noted in the same case that " Jury sentencing has been considered desirable in capital cases in order 'to maintain a link between contemporary community values and the penal system -- a link without which the determination of punishment could hardly reflect "the evolving standards of decency that mark the progress of a maturing society." ' " Id., at 190.

The appellant's second enumeration of error is without merit.

3. The appellant complains that the verdict is not supported by the evidence in the specific sense that the appellant was convicted on the basis of the uncorroborated testimony of a co-conspirator.

Code Ann. 38-121 provides that, while the testimony of a single witness is generally sufficient to establish a fact, in any case of a felony where the only witness is an accomplice, corroborating circumstances must also be proven.

"Under 38-121, testimony which concerns the identity of other participants must be corroborated by some means independent of the testimony of the accomplice. One who is guilty of a crime in which he participated will always be able to relate the facts of the case and if the corroboration goes only to the truth of that history, without identifying the person accused, it is really no corroboration at all." Birt v. State, 236 Ga. 815, 824 (225 SE2d 248) (1976). (Emphasis supplied.)

Accordingly, under Code Ann. 38-121, evidence must be presented at trial which corroborates the accomplice's testimony both as to the history of the felony and as to the identification of the accused as a participant in the crime, and, as regards the latter corroboration, the evidence must originate from an independent source.

Finally, the standard of review regarding corroboration is as follows: "It is not required that the corroboration shall of itself be sufficient to warrant a verdict, or that the testimony of the accomplice be corroborated in every material particular [and] . . . slight evidence from an extraneous source identifying the accused as a participator in the criminal act will be sufficient corroboration of the accomplice to support a verdict." Birt, supra, at 826.

Having thoroughly reviewed the present appellate record, we hold that the testimony of Timothy A. Helms, the appellant's accomplice, regarding the history of the appellant's crimes, is amply corroborated by other evidence. Further, Helms' testimony as to appellant's identity and participation in the present crimes is independently corroborated by the testimony of three witnesses who saw the appellant in the company of Captain Doe on the afternoon and evening of the day of the shooting, and, by the appellant's latent fingerprint which was lifted from the left door window of the victim's car. Cf. Birt, supra, at 825.

4. Finally, the appellant complains that the trial court violated Code Ann. 27-2534.1 by not presenting to the jury, in writing, a copy of the court's entire charge regarding sentencing.

Code Ann. 27-2534.1 (c) provides as follows: "The statutory instructions as determined by the trial judge to be warranted by the evidence shall be given in charge and in writing to the jury for its deliberation."

In the present case, the trial court gave to the jury, for its consideration as to punishment, a written list of the statutory aggravating circumstances which the trial court had orally charged. Code Ann. 27-2534.1 (c) demands nothing more. Spraggins v. State, 243 Ga. 73, 75 (252 SE2d 465) (1979).

The appellant's final enumeration of error is without merit.

III. Death Sentence Review.

In recommending the death penalty as to Count 1 of the indictment, which charged appellant with the murder of Patrick A. Doe, the jury found the following aggravating circumstance:

"The offense of murder was outrageously and wantonly vile, horrible and inhuman." Code Ann. 27-2534. 1 (b) (7).

While partial findings of this particular aggravating circumstance have been affirmed on appeal, in this case the judge did not charge Code Ann. 27-2534.1 (b)(7) as an aggravating circumstance as to Count 1 of the indictment. Godfrey v. State, 243 Ga. 302 (253 SE2d 710) (1979); Ruffin v. State, 243 Ga. 95 (252 SE2d 472) (1979). Rather, the trial court charged that the jury could only consider as an aggravating circumstance that the "offender committed the offense of murder for himself or another for the purpose of receiving money or any other thing of monetary value." Code Ann. 27-2534.1 (b) (4).

As to Count 1 of the indictment we conclude that the evidence does not support a finding of Code Ann. 27-2534.1 (b) (7) or (4) as an aggravating circumstance. Harris v. State, 237 Ga. 718 (230 SE2d 1) (1976); see Banks v. State, 237 Ga. 325 (227 SE2d 380) (1976); Holton v. State, 243 Ga. 312 (253 SE2d 736) (1979). Therefore, as to Count 1 of the indictment, the sentence of death is vacated and the case remanded with direction that a sentence of life imprisonment be imposed.

In recommending the death penalty as to Count 2, the murder of Ms. Miller, the jury found the following statutory aggravating circumstances:

  (1) The offense of murder was committed while the offender was engaged in the commission of another capital felony to wit: the murder of Patrick A. Doe. (Code Ann. 27-2534.1 (b) (2); and (2) The offense of murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture and depravity of mind. The evidence supports the jury's findings of these two statutory aggravating circumstances.

Further, this court finds that the sentence of death imposed in Count 2 was not imposed under the influence of passion, prejudice or any other arbitrary factor.

We find also, that the trial court's instructions to the jury during the sentencing phase of the trial are not subject to the defects addressed in Hawes v. State, 240 Ga. 142 (240 SE2d 37) (1977).

Finally, we have considered the cases appealed to this court since January 1, 1970, in which death or life sentences were imposed and find the similar cases listed in the appendix support the affirmance of the death penalty in this case. Joseph H. Mulligan's sentence to death is not excessive or disproportionate to the penalty imposed in similar cases considering both the crime and the defendant.

*****

APPENDIX.

Westbrook v. State, 242 Ga. 151 (249 SE2d 524) (1978); Alderman v. State, 231 Ga. 494 (202 SE2d 441) (1973); Morgan v. State, 231 Ga. 280 (201 SE2d 468) (1973); Mitchell v. State, 234 Ga. 160 (214 SE2d 700) (1975); Dobbs v. State, 236 Ga. 427 (224 SE2d 3) (1976); Birt v. State, 236 Ga. 815 (225 SE2d 248) (1976); Douthit v. State, 239 Ga. 81 (235 SE2d 493) (1977); Gaddis v. State, 239 Ga. 238 (236 SE2d 594) (1977); Stanley v. State, 240 Ga. 341 (241 SE2d 173) (1977); Thomas v. State, 240 Ga. 393 (242 SE2d 1) (1977).

 
 

771 F.2d 1436

Joseph MULLIGAN, Petitioner-Appellant,
v.
Ralph KEMP, Warden, Georgia Diagnostic and Classification
Center, Respondent- Appellee.

No. 82-8027.

United States Court of Appeals,
Eleventh Circuit.

Sept. 4, 1985.

Appeals from the United States District Court for the Middle District of Georgia.

Before ANDERSON and CLARK, Circuit Judges, and DUMBAULD*, District Judge.

R. LANIER ANDERSON, III, Circuit Judge:

Joseph Mulligan, a state prisoner under sentence of death, appeals the decision of the United States District Court for the Middle District of Georgia denying his petition for a writ of habeas corpus. We affirm.

I. PROCEDURAL BACKGROUND

Joseph Mulligan was tried for two counts of murder in the Superior Court of Muscogee County, Georgia. Trial testimony revealed that he had journeyed from South Carolina to Columbus, Georgia, in 1974 and, with the help of Timothy Helms, killed Patrick Doe and Marian Miller on April 14, 1976. On November 4, 1976, he was found guilty of both murders by the trial jury and sentenced to death.

The Georgia Supreme Court reversed Mulligan's death sentence for the murder of Doe, but affirmed the sentence imposed for Miller's death. Mulligan v. State, 245 Ga. 266, 264 S.E.2d 204 (1980). The Supreme Court of the United States denied his petition for writ of certiorari. Mulligan v. Georgia, 449 U.S. 986, 101 S.Ct. 407, 66 L.Ed.2d 250 (1980). Mulligan then sought habeas corpus relief in the Georgia state courts, but was unsuccessful. A second petition for writ of certiorari was denied by the U.S. Supreme Court. Mulligan v. Zant, 454 U.S. 1068, 102 S.Ct. 618, 70 L.Ed.2d 603 (1981).

The instant habeas corpus action, brought pursuant to 28 U.S.C.A. Sec. 2254, was filed on January 18, 1982. In his petition, Mulligan raised twelve separate constitutional issues.1 The district court did not develop the record by holding an evidentiary hearing, but it did allow the parties to take depositions on the ineffective assistance of counsel claim. The petition was denied on May 17, 1982 in an order that explicitly discussed only the ineffective assistance claim.

Mulligan raises only two issues in his appeal of the district court's order. First, he argues that his trial counsel was ineffective at both the guilt and sentencing phases of his trial due to an inexcusable lack of pre-trial investigation. Second, he claims that the prosecutor's closing statements were so improper that they rendered both the guilt and sentencing phases fundamentally unfair. We consider each issue below.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

A. Facts

Mr. Jay Fitt was appointed by the trial court to represent Mulligan in his capital trial. Fitt was an experienced criminal defense attorney, having served as counsel for between 75 and 100 defendants. The Mulligan case was the first case to be tried in the Columbus area under a new Georgia capital sentencing statute.2

When Fitt first contacted Mulligan, the appellant insisted that he had not been in Columbus on the day of the crime, but had been with his family in Beaufort, South Carolina. Fitt explained to Mulligan that a "family alibi" is not often persuasive, and would probably result in a conviction, but Mulligan was adamant. Immediately thereafter, the prosecutor, Mr. Mullins Whisnant, indicated his willingness to recommend a life sentence if Mulligan would plead guilty. Once again, Fitt explained this to his client and told him that a plea would be "a safe way to go if there was any danger at all of ... being convicted." Fitt Deposition at 15. Mulligan was adamant that he did not commit the crime and would not plead guilty.

After Mulligan rejected the plea bargain, Fitt travelled to South Carolina to interview potential alibi witnesses. He spoke with many family members and they all corroborated Mulligan's story. Fitt was convinced by their assertions and felt that he could put up a strong defense. He intended to call these family members as witnesses at trial and also planned, in the eventuality of a guilty verdict, to have them testify at the sentencing stage about Mulligan's personal character.

Fitt talked to the prosecutor about the state's witnesses, and knew that the state was going to produce several eyewitnesses to testify that Mulligan was in Columbus at the time of the murder. He asked the prosecutor to put the witnesses in touch with him, but did not make any additional effort to speak with the witnesses before trial. From his conversations with the prosecutor, Fitt knew that two captains and a lieutenant from Fort Benning would be available to testify that they saw Mulligan on the morning of April 13, 1976 helping Patrick Doe wash his Lincoln Continental, and that Mulligan had been brandishing a gun. Fitt knew that he would have to "mak[e] those people out to be either mistaken or to be liars...." Fitt Deposition at 20.

In addition, he did not speak with Timothy Helms, Mulligan's accomplice who had been given immunity from prosecution and whom he knew would provide direct testimony that Mulligan shot the victims. Fitt explained this failure by claiming that Helms was not in the Columbus area before trial; however, he did not move for a continuance or otherwise demonstrate any hesitation to proceed once Helms appeared at the trial.

Rather, he trusted his ability to damage Helms' credibility with the jury because of the grant of immunity. Finally, Fitt turned down an offer by the prosecutor to provide him with the government's list of witnesses, apparently believing that he already knew who the witnesses were and that his strategic choice to pursue the alibi defense did not require further investigation of the state's case.

At trial, Fitt made serious attempts in cross-examination to undermine eyewitness accounts that placed Mulligan in Columbus, Georgia. The eyewitnesses were completely certain, however, and did not equivocate during Fitt's questioning. Fitt also cross-examined Timothy Helms at length, bringing out some minor conflicts between his trial testimony and a previous written statement and exploring the effect of the grant of immunity upon his credibility as a witness.

The crucial moment in the trial occurred when the state called David Rice, a fingerprint expert, as its last witness. Immediately after Rice asserted that Mulligan's fingerprints had been found in the car where the victims' bodies were discovered, Fitt approached the bench and objected to the testimony because he had not been told that the witness was going to appear. In the presence of the jury, the prosecutor explained that Fitt had said he was not interested in the state's witness list. This argument continued for a short time before Fitt asked for the jury to be excused. The court then ruled that because Fitt had not made a formal demand for the state's witness list, his objection to Rice's testimony would not be sustained.

Following this colloquy, Fitt returned to counsel table. Mulligan leaned over to him and said "I didn't tell you the truth." This remark placed Fitt in an impossible position vis-a-vis the planned alibi defense. Although he had explained in his opening statement that Mulligan and his family members would testify that Mulligan was in South Carolina, he now knew that the alibi was untrue. He therefore decided not to put on any witnesses in defense. Instead, he stressed in closing argument the incredibility of Helms' testimony and suggested that he, rather than Mulligan, may have been the principal assailant.

At the sentencing stage, Fitt's original plan was to have family members testify about Mulligan's character. However, following the revelation that these family members might lie about where Mulligan was on the day of the crime (communicated to the jury's by Fitt's opening statement, which explained that they would testify in support of the alibi), Fitt concluded that testimony of family would not help Mulligan avoid a capital sentence. Instead, he decided that "we might get a lot more mileage out of ... just arguing the issue of the death penalty from an emotional point of view." Fitt Deposition at 45. Aside from Fitt's closing argument, there was no evidence introduced for the defendant at sentencing.

B. Legal Standard

The Sixth Amendment guarantees to criminal defendants the right to "adequate legal assistance." Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). Claims that defense counsel's efforts fell below the standard of adequacy constitutionally required, commonly called "ineffective assistance" claims, are governed by the standards recently set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In order to prevail, a defendant must first show that counsel's efforts fell "outside the wide range of professionally competent assistance." Id. at ----, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. This standard demands deference to choices made by the trial attorney. Id. at ----, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. If a defendant makes the initial showing, he must then show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at ----, 104 S.Ct. at 2069, 80 L.Ed.2d at 698. If both prongs of the test are met, relief will be granted.

Concerning the analysis of attorney competence, the protections of the Sixth Amendment necessarily extend to counsel's activities before trial, when "consultation, thorough going investigation and preparation [are] vitally important." Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 59, 77 L.Ed. 158 (1932). This circuit has held that "[i]nformed evaluation of potential defenses to criminal charges and meaningful discussion with one's client of the realities of his case are cornerstones of effective assistance of counsel." Gaines v. Hopper, 575 F.2d 1147, 1149-50 (5th Cir.1978).

The evaluation of whether an attorney has adequately conducted pre-trial investigation is complex, depending upon such factors as "the number of issues in the case, the relative complexity of those issues, the strength of the government's case, and the overall strategy of trial counsel." Washington v. Strickland, 693 F.2d 1243, 1251 (5th Cir. Unit B 1982) (en banc), rev'd, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).3

Further complicating the inquiry is the need to evaluate the effectiveness of pre-trial actions from the standpoint of what was possible at the time rather than from the omniscient perspective made possible by a reviewing court's awareness of how the case was ultimately resolved. Strickland v. Washington, 466 U.S. at 668, 104 S.Ct. at 2065, 80 L.Ed.2d at 694 ("A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight ..."). See Washington v. Watkins, 655 F.2d 1346, 1356 (5th Cir. Unit A September 14, 1981), cert. denied, 456 U.S. 949, 102 S.Ct. 2021, 72 L.Ed.2d 474 (1982). With these general principles in mind, we now examine Mulligan's particular claim.

C. Analysis

This case presents an unusual situation in the continually evolving body of case law defining effective assistance of counsel. Unlike other cases concerning the adequacy of pre-trial investigation, Fitt's assistance does not involve a complete lack of preparation. See, e.g., Kemp v. Leggett, 635 F.2d 453 (5th Cir. Unit B Jan. 27, 1981) (counsel performed no pre-trial investigation); Gaines v. Hopper, 575 F.2d 1147 (5th Cir.1978) (counsel failed to interview any witnesses).

Fitt was appointed at least two months before trial. He had numerous contacts with his client, discussed the case frequently with the prosecutor, presented an opportunity for his client to plead guilty and receive a life sentence, investigated an alibi defense, and prepared witnesses for trial and sentencing testimony. Nor does this case involve the occasional situation in which an attorney explicitly disregards the client's stated defense to the criminal charge. See Gomez v. Beto, 462 F.2d 596 (5th Cir.1972) (client notified attorney of alibi witnesses, but attorney refused to interview them or present alibi defense at trial).

In this case, Fitt made significant efforts to shake Mulligan's reliance on the alibi defense, but the persistence of his client and the persuasiveness of the family members' proposed testimony ultimately convinced him of the validity of the defense. Thus, the strategy was to present the alibi defense which Mulligan had conveyed to Fitt.

The question raised in this case is whether Fitt's failure to formally request a witness list or interview those state witnesses he did know about--actions which would have revealed the strength of eyewitness testimony as well as testimony of a fingerprint expert placing the defendant at the murder scene--constituted ineffective assistance of counsel in light of Mulligan's misrepresentations and the other circumstances of the case.

1. Choice to Pursue the Alibi Defense: At the start, we note that a defendant's Sixth Amendment rights are his alone, and that trial counsel, while held to a standard of "reasonable effectiveness," is still only an assistant to the defendant and not the master of the defense. See Faretta v. California, 422 U.S. 806, 820, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975).

Our criminal system allows a defendant the choice of whether he wants to be represented by counsel at trial. See generally Faretta. Because we recognize that a defendant must have this broad power to dictate the manner in which he is tried, it follows that, in evaluating strategic choices of trial counsel, we must give great deference to choices which are made under the explicit direction of the client. The Court in Strickland v. Washington said:

The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant.

In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable.

In short, inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigation decisions, just as it may be critical to a proper assessment of counsel's other litigation decisions. See United States v. Decoster, 624 F.2d , at 209-10 [D.C.Cir.1976].

466 U.S. at ----, 104 S.Ct. at 2066-67, 80 L.Ed.2d at 695-96. This is not to say that an attorney has no professional independence to act without the explicit permission of his client. Rather, if he is commanded by his client to present a certain defense, and if he does thoroughly explain the potential problems with the suggested approach, then his ultimate decision to follow the client's will may not be lightly disturbed.4

In this case, Mulligan insisted from the start that he was not guilty of the murders. Fitt informed him that a "family alibi" defense was weak and that it would likely result in a conviction. Fitt strongly advised him to accept the plea bargain "if there is any chance" of being convicted. Mulligan knew that the state would present eyewitnesses placing him in Georgia and that Helms would testify against him. Still, he held on to his alibi and insisted upon his innocence. Fitt was not required to pressure Mulligan any further.

In light of the foregoing and the apparent persuasiveness of the witnesses who said they would corroborate Mulligan's alibi, the choice to proceed with the alibi defense was a reasonable one. See Dixon v. Balkcom, 614 F.2d 1067, 1068 (5th Cir.1980) ("While constitutionally effective counsel must make an informed evaluation of possible defenses and have a meaningful discussion of the reality of the case with his client, in light of [the client's] directions these requirements were met").

2. Investigation of the Alibi Defense: Even though we accept Fitt's strategic choice of the "family alibi" defense, we must still determine whether, having chosen it, he conducted a reasonable investigation of that defense. Strickland v. Washington, 466 U.S. at ----, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. Such an investigation has been held to include " 'an independent examination of the facts, circumstances, pleadings and laws involved.' " Rummel v. Estelle, 590 F.2d 103, 104 (5th Cir.1979), quoting Von Moltke v. Gillies, 332 U.S. 708, 721, 68 S.Ct. 316, 322, 92 L.Ed. 309 (1948).

The extent of Fitt's investigation is clear from the record. He consulted with Mulligan, talked to the prosecutor, and interviewed and prepared defense witnesses. He did not attempt to interview the state witnesses of whom he was aware, although from his discussions with the prosecutor, he assumed that he knew the substance of their testimony. His assumption was correct, except for the unknown fingerprint witness. Fitt also declined the proffer of a state witness list under the mistaken belief that he already knew about all of the state witnesses.

Through conversations with the prosecutor, Fitt was aware that eyewitnesses would place Mulligan in Columbus, Georgia on the day of the crime. Fitt knew he would have to discredit these eyewitness accounts, and he attempted to do so at trial by emphasizing the possibility that their memories had faded in the two-year delay before trial. He also was aware that Helms would testify under a grant of immunity, so he prepared cross-examination to demonstrate that Helms' story was self-serving and suspicious.

This cross-examination, while unsuccessful, was not insubstantial. Although it would have been wiser to interview each of the state's eyewitnesses and Helms, we cannot conclude on this record that his conversations with the prosecutor and his prepared cross-examination falls below the "reasonable substantial investigation" standard. Strickland v. Washington, 466 U.S. at ----, 104 S.Ct. at 2061, 80 L.Ed.2d at 689.

The refusal of the state's witness list and the consequent failure to know about the fingerprint testimony are more troubling. But even this evidence was within the scope of the state's case as Fitt had come to understand it. He knew there would be strong evidence adduced that Mulligan was in Columbus, and he planned to attack that evidence. While the fingerprint evidence was a surprise at trial, its additional effect on an already strong state case was not overwhelming.

Fitt was able to cross-examine Officer Rice and he argued to the jury that the print was unclear. While formally requesting the list would have been the better practice, we note two additional factors which serve to explain Fitt's action in not requesting the state's witness list. First, Fitt had a reasonable understanding that his conversations with the prosecutor had revealed all material witnesses. Second, in light of the alibi asserted so vehemently by Mulligan, which was corroborated by Mulligan's rejection of the plea bargain and by the convincing support from the several witnesses interviewed in Beaufort, we cannot conclude that Fitt was unreasonable in believing the alibi; thus, his complacency in not anticipating a fingerprint witness was not unreasonable.

We conclude, therefore, that Fitt's pre-trial investigation was not ineffective. He thoroughly investigated the South Carolina witnesses and became aware of the boundaries of the state's case. After his attempts to shake his client's uncontroverted reliance on the alibi were rebuffed, his failure to explore further the particulars of the state's evidence did not violate Mulligan's Sixth Amendment rights under the circumstances of this case.

This conclusion is consistent with other cases from this circuit. In Kemp v. Leggett, 635 F.2d 453 (5th Cir. Unit B Jan. 27, 1981), an inexperienced trial counsel was found ineffective because he turned down a possible plea bargain agreement without discussing it with his client, failed to conduct a pretrial investigation, and refused to call witnesses that the defendant had requested.

In this case, on the other hand, Fitt, an experienced criminal defense attorney, made substantial efforts to persuade Mulligan to accept a guilty plea, did conduct a pretrial investigation, and attempted to put on the defense requested by his client. In Gomez v. Beto, 462 F.2d 596 (5th Cir.1972), trial counsel was held ineffective because he, unlike Fitt, explicitly refused to follow his client's instructions in preparing his defense.

In Gaines v. Hopper, 575 F.2d 1147 (5th Cir.1978), counsel was held ineffective for presenting an incredible alibi he had not even investigated when his client's own statements strongly suggested a possibly exculpatory defense that could have been corroborated by witnesses readily available for purposes of investigation. By blindly persisting with an incredible alibi that he had not attempted to either challenge or corroborate, trial counsel deprived his client of a clearly favorable defense at trial.

In this case, Fitt did what he could to convince his client of the weakness of the "family alibi" and, when such a tactic did not work, he sought corroboration, which he found to be very believable. He did not overlook any evidence favorable to his client. Our conclusion that Fitt's pretrial investigation was not ineffective is supported by the foregoing cases.5

3. Failure to Present Evidence at Sentencing Stage: Fitt presented no evidence at the sentencing phase of Mulligan's trial, relying instead on an emotional appeal against the death penalty in his closing argument. Mulligan claims that this lack of evidence stemmed from an insufficient pre-trial investigation, i.e., that Fitt put on no evidence at sentencing because he had not prepared to do so. This claim is incorrect.

Fitt planned to use the same family members at the sentencing phase who were going to corroborate Mulligan's alibi. While Mulligan now claims that other witnesses were available, he does not dispute that these family members were appropriate people to give sentencing testimony. Nor does he claim that particular substantive areas of mitigating evidence were overlooked in focusing on these family members.6

Following the admission by Mulligan that he had lied, Fitt began to evaluate the effect of this fairly obvious attempt at perjury on his sentencing phase presentation. He worried that the indication that Mulligan's family would lie for their son (communicated in the opening statement) would damage their credibility before the jury. He then made a strategic choice not to put the family members on at sentencing. This choice, although certainly a very difficult one in the context of the trial, was deemed to be a reasonable strategic choice by the court below. That finding is not clearly erroneous. See Washington v. Strickland, 693 F.2d at 1256 n. 23.

D. Conclusion

For the foregoing reasons, we conclude that Fitt's representation did not fall below the reasonably effective level required by the Sixth and Fourteenth Amendments.

III. PROSECUTORIAL ARGUMENT

Mulligan's claim that the guilt phase of his trial was rendered fundamentally unfair by the prosecutor's closing argument warrants little discussion. The asserted infractions in the prosecutor's argument were either not improper at all or relatively nonprejudicial. In light of the foregoing and the overwhelming evidence of guilt, we have no difficulty concluding that there is no merit to Mulligan's challenge to the prosecutor's argument in the guilt phase.

Mulligan also asserts that the prosecutor's closing argument in the sentencing phase was so improper as to render his sentencing proceedings fundamentally unfair. The prosecutor in the instant case also prosecuted Brooks v. Kemp, 762 F.2d 1383 (11th Cir.1985) (en banc). The challenged argument here is so similar to the argument in Brooks that we conclude that the severity of the several improper aspects of the argument is almost identical to that in Brooks.

Although a prosecutorial misconduct challenge requires a fact sensitive inquiry, and for that reason prior cases will very seldom be squarely in point, we conclude that this case is controlled by Brooks. Accordingly, without need for further discussion, we reject Mulligan's claim for relief based on the prosecutor's argument in the sentencing phase.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

*****

*

Honorable Edward Dumbauld, U.S. District Judge for the Western District of Pennsylvania, sitting by designation

1

The claims were as follows: (1) that trial counsel was ineffective; (2) that the sentencing jury had insufficient guidance and the penalty was disproportionate to the penalties rendered in similar Georgia cases; (3) that prosecutorial argument was improper; (4) that no theoretical justification exists for capital punishment; (5) that the grand jury was composed in an unconstitutional manner; (6) that jurors were wrongly excluded because of their anti-death penalty feelings; (7) that an in-court identification was improper; (8) that the Georgia death penalty statute is overbroad and vague; (9) that jury instructions at the sentencing phase were improper; (10) that the jury was made up in an unconstitutional fashion; (11) that the death penalty is discriminatory; and (12) that the prosecutor systematically excluded blacks from serving on juries in the jurisdiction

2

The Georgia statute, currently codified at Ga.Code Ann. Sec. 17-10-30, et seq., was enacted in 1973 following the decision by the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)

3

In Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir.1982), this court adopted as binding precedent all of the post-September 30, 1981, decisions of Unit B of the former Fifth Circuit. Id. at 34. Cf. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc) (adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981)

4

This principal is consistent with practical considerations in addition to the notion of defendant control embodied in the Sixth Amendment. An attorney representing a criminal defendant normally has other cases occupying his time. As a matter of efficiency, he should be able to rely upon his client's unequivocal statements in planning a defense

5

Even if we were to assume that Fitt's failure to interview the known witnesses and his failure to obtain the complete state witness list did fall below the standard of effective assistance of counsel, Mulligan would clearly fail to satisfy the prejudice prong of his Sixth Amendment claim. As noted above, the prejudice prong requires Mulligan to show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, ----, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984). Fitt's failure to interview the state's eyewitnesses caused no prejudice, because Fitt did learn the substance of their testimony from his conversations with the prosecutor. Fitt's failure to obtain the complete state witness list, and thus not know of the fingerprint witness, was also not prejudicial. Mulligan's initial defense strategy was rendered ineffectual not by the failure to obtain the witness list, but rather because Mulligan himself finally admitted to his attorney that he was in fact in Columbus on the crucial day, thus making it impossible for Fitt to present the alibi defense. Fitt's mistake in failing to obtain the complete list pales in significance compared to Mulligan's own affirmative misrepresentations to his attorney. We thus conclude that any prejudice to Mulligan's case was caused by his own lie, and not by Fitt's mistake

6

Fitt had prepared the family members to testify about Mulligan and their concern for him. Petitioner submitted a list of twenty-five witnesses in his state habeas corpus proceeding, most of whom Fitt had never contacted. Significant, however, is the fact that the affidavits of these twenty-five do not contain allegations going beyond the general good character of Mulligan. Thus, it is not clear that the presentation of any of these uncontacted witnesses would have added anything but cumulative testimony to the case in mitigation that had already been prepared by Fitt

 
 

818 F.2d 746

Joseph MULLIGAN, Petitioner-Appellant,
v.
Ralph KEMP, Warden, Georgia Diagnostic and Classification
Center, Respondent-Appellee.

No. 87-8351.

United States Court of Appeals,
Eleventh Circuit.

May 14, 1987.

Appeal from the United States District Court for the Middle District of Georgia.

Before RONEY, Chief Judge, and HILL and KRAVITCH, Circuit Judges.

PER CURIAM:

Petitioner, Joseph Mulligan, convicted of murder and sentenced to death, filed a petition for writ of habeas corpus pursuant to Sec. 2254, together with a motion for stay of execution now set for Friday, May 15, 1987, at 7:00 p.m. State proceedings have been exhausted.

The respondent State of Georgia filed responsive pleadings in which it pled abuse of the writ. The district court denied relief, finding that this was a successive habeas petition and that all six grounds asserted in the present petition constituted an abuse of the writ. The district court denied a certificate of probable cause but granted leave to appeal in forma pauperis.

Of the six grounds alleged as a basis for relief in this petition for writ of habeas corpus, three were asserted in the prior petition, and three are so-called "new" grounds, not previously asserted. After thoroughly reviewing all papers filed in the state courts and in the federal district court and after extended oral argument before this panel, this court denies the motion for certificate of probable cause.

On four of the issues this court concurs in the district court's decision that the claims for relief should be dismissed as an abuse of the writ. These grounds are as follows:

I.

The misleading and incomplete felony murder instruction amounted to a judicially created amendment violating petitioner's Fourteenth and Sixth Amendment rights.

This claim was not raised in petitioner's prior habeas petition and the state having pled an abuse of the writ, the petitioner failed to show why assertion of the ground in this petition does not constitute an abuse of the writ. The ends of justice do not require consideration of this claim on this petition.

II.

The Muscogee County grand and traverse jury system which indicted, convicted and sentenced petitioner to death unconstitutionally underrepresented black and female citizens.

This issue was raised in the prior federal petition for writ of habeas corpus, decided contrary to the petitioner's arguments by the district court, and not appealed to this court. Thus the petitioner has obtained a ruling on the merits on this issue and asserting it again in this second petition constitutes an abuse of the writ. Again petitioner has failed to show that the ends of justice would be served by reconsideration on the merits.

III.

The introduction of morgue photographs of the deceased served no purpose other than to inflame the passions of the jury in violation of the Sixth, Eighth and Fourteenth Amendments.

This is a new issue which must be examined under Rule 9(b), Rules Governing Section 2254 Cases. Contrary to the petitioner's argument, this court does not read Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), as providing any new law basis for consideration of this claim. The claim was properly dismissed as an abuse of the writ and the ends of justice do not require it to be considered here. Petitioner argues that a case upon which certiorari has been granted by the United States Supreme Court presents the same issue, Thompson v. Oklahoma, --- U.S. ----, 107 S.Ct. 1284, 94 L.Ed.2d 143. Petitioner concedes, however, that there is no decided case upon which to pass a new law claim.

IV.

The sentencing phase jury instructions were constitutionally defective because they failed to specifically and explicitly instruct the jury that it had an option to recommend a life sentence notwithstanding a finding of a statutory aggravating circumstance.

This claim was asserted in petitioner's prior federal petition for writ of habeas corpus, but he did not appeal. Thus, petitioner had an adjudication on the merits and reassertion of the claim in a successive petition constitutes an abuse of the writ without a showing of either new law or new facts. We disagree with petitioner's argument that new law on the issue was established in the en banc decision of this court in Moore v. Kemp, 809 F.2d 702 (11th Cir.1987) (en banc). Spivey v. Zant, 661 F.2d 464 (5th Cir. Unit B 1981).

Although the district court denied the petition on the other two grounds asserted on the basis of abuse of the writ, the merits of the issues are easily considered and decided without relying on an abuse of the writ ground.

I.

The penalty phase jury instructions unconstitutionally diminished the jury's sense of responsibility for its sentence under Caldwell v. Mississippi.

This issue was raised in the prior petition, but petitioner claims that Caldwell v. Mississippi established new law applicable to the claim which requires its consideration here. This claim involved the instructions to the jury. A reading of the instructions clearly indicates that the jury's sense of responsibility for its sentence was in no way diminished and the instructions were not unconstitutional under Caldwell. Although the district court used the word "recommend" as to what the jury was to do concerning the death sentence or a life sentence, it specifically instructed the jury that it was required to sentence the defendant to death if that was its recommendation. At the end of the instruction, in instructing the jury as to the form of the verdict, the judge said:

Now, members of the jury, the form of your verdict fixing punishment, with respect to each count of murder, would be one of the following: "We the jury find the following statutory aggravating circumstances," listing what aggravating circumstances you find, if you find one of them to exist, "and we recommend the death penalty." That verdict would mean that the defendant would be sentenced to death by electrocution.

Or, "We the jury do not recommend the death penalty." Should this be your verdict, then the Court would sentence the defendant to life imprisonment.

These instructions fully comply with the requirement that the jury understand its responsibility for a death sentence.

II.

The jury in petitioner's case was never properly instructed that their verdicts in each phase of the trial must be unanimous.

Although the trial court never used the word "unanimous" in its instructions, it was clear that the jury was told that it could not return a less than unanimous verdict because the court said:

Now, upon retiring to the jury room, you will select one of your number to act as foreman or forelady who will preside over your deliberations, and who will sign the verdict to which all twelve of you freely and voluntarily agree.

In addition, when the jury returned its verdict, defense counsel declined the court's invitation to poll the jury.

Having fully considered all arguments made to the court, the certificate of probable cause is DENIED and the motion for stay of execution set for 7:00 p.m. on Friday, May 15, 1987, is DENIED.